45. This would effect a major change in the criminal
law of England and Wales and Scotland.[32]
In each jurisdiction, intentionally doing anything to hasten a
person's death constitutes the crime of murder contrary to common
law, and assisting someone else to hasten his or her own death
constitutes the crime of assisting suicide under section 2 of
the Suicide Act 1961. The issues which the Bill addresses have
immense moral and medical significance, and are highly controversial.
Our job is only to consider the human rights implications.

46. We have considered two broad issues, arising
mainly out of the right not to be intentionally deprived of life
(ECHR Article 2) and the right to respect for private life (ECHR
Article 8). First, would any Bill to permit the intentional taking
of life at the request of someone who wants to die be unavoidably
incompatible with the right not to be intentionally deprived of
life under ECHR Article 2, having regard to the case-law of the
courts in the United Kingdom and Strasbourg? Secondly, are the
safeguards contained in the Patient (Assisted Dying) Bill likely
to be adequate to ensure that the powers that the Bill would confer
would be used in a manner compatible with Convention rights in
each case?

47. We have come to the conclusion that the answer
to the first question is 'No', and that the answer to the second
question is 'Yes'. As a result, the Bill would not, in our view,
give rise to a significant risk of incompatibility with Convention
rights. In view of the importance and sensitivity of the Bill's
subject matter, we think it right to explain our reasons rather
more fully than we ordinarily would in these circumstances.

48. Intrinsic compatibility or incompatibility.
The current law, which prohibits any act done with the intention
of hastening death, is a compromise between the values of the
sanctity of life and personal autonomy. The law is compatible
with ECHR Article 2, which prohibits the intentional deprivation
of life save under certain circumstances. This was established
in litigation brought by Mrs. Diane Pretty in 2001 and 2002. Mrs.
Pretty was suffering from motor neurone disease. She wished to
end her life, but was physically unable to do so without assistance.
In the English courts, she sought judicial review of the refusal
by the Director of Public Prosecutions to undertake, in advance,
not to prosecute her husband for aiding and abetting suicide if
he were to take steps to help her to end her life.[33]
On her behalf, it was argued that refusing to allow people to
die when they want to do so leads to them being subjected to inhuman
or degrading treatment contrary to ECHR Article 3, and denied
respect for their private lives under Article 8 and their freedom
of conscience and belief under Article 9; and that allowing able-bodied
people to kill themselves but preventing disabled people from
receiving necessary assistance to kill themselves discriminates
against them contrary to Article 14. However, the House of Lords
held that the prohibition on intentionally taking life in Article
2 prevented an interpretation that would give people a right to
be helped by others to die. Articles 3, 8 and 9 were concerned
with conditions of life and choices as to how to live, but could
not be interpreted as giving a right to decide when and how to
die. (Lord Hope of Craighead accepted that the way someone chooses
to pass the closing moments of life is part of the act of living,
and requires respect, but denied that it could give rise to a
positive obligation to give effect to a person's wish to end his
or her own life by way of assisted suicide.)[34]
Article 14 was not engaged because the Suicide Act 1961, while
decriminalizing suicide, did not give a right to commit suicide,
and the offence of aiding and abetting suicide was of general
application and so was not discriminatory.

49. Mrs. Pretty petitioned the European Court of
Human Rights. The Court reached the same conclusion, but by a
rather different route.[35]
Article 2 is clear in its terms. The prohibition on intentionally
depriving people of life cannot be avoided by implying a right
to choose to die from the right to live. It would be even less
appropriate to interpret Article 2 as giving rise to a positive
obligation on the state to allow a person to assist another to
die. Such an obligation would be inconsistent with the words and
main thrust of Article 2.[36]
Article 3 is applicable, but the state had not itself inflicted
any inappropriate treatment Mrs. Pretty. While Article 3 is capable
of giving rise to positive obligations, they do not extend to
allowing a third party to take another's life, or to helping a
patient to take her own life: such a positive obligation would
be inconsistent with Article 2.[37]
Unlike the majority of the House of Lords, the Court held that
Article 8.1 was engaged, because (as Lord Hope of Craighead had
said in the House of Lords) the way Mrs. Pretty chooses to pass
the closing moments of her life is part of the act of living,
and she has a right to ask that her choice must be respected.[38]
Although no previous case had expressly established that a right
to self-determination is part of Article 8, 'the notion of personal
autonomy is an important principle underlying the interpretation
of its guarantees'.[39]
However, the interference with that right was justified under
Article 8.2, because (a) it was in accordance with the law, (b)
it served a legitimate aim (the protection of the rights of other
patients who, unlike Mrs. Pretty, would be vulnerable to an abuse
of any freedom to kill),[40]
and (c) it was necessary in a democratic society. On the last
point, the Court held that the state's margin of appreciation
was wider in cases involving protection of life than in cases
where the interference was with sexual freedom.[41]
Although Mrs. Pretty was not herself vulnerable to an abuse of
the freedom to end life,[42]
some patients nearing the end of their lives would be, and the
rationale for the law was to protect those patients as a class,
including vulnerable patients.[43]
That being so, the blanket nature of the prohibition on assisted
suicide was not disproportionate.[44]
Mrs. Pretty's firm views about assisted suicide did not fall within
the fields of thought, conscience and religion and belief protected
by Article 9.[45] Finally,
there was no violation of Article 14 taken together with Article
8. While it might violate Article 14 to treat similarly people
in relevantly different situations,[46]
there could be a justification on objective and rational grounds,
the state being allowed a margin of appreciation in assessing
whether and to what extent differences in otherwise similar positions
justify different treatment. There was an objective and rational
justification for not treating differently those who are and are
not physically capable of committing suicide, the reasons being
the same as those that led the Court to hold that the interference
with the right under Article 8.1 had been justified.[47]

50. This decision gives rise to a serious doubt as
to whether legislation permitting assisted suicide would be compatible
with Article 2. In the Pretty case, it was argued for Mrs.
Pretty that a decision such as the Court reached on Article 2
would place those countries which allow assisted suicide (such
as the Netherlands and Switzerland) in breach of the Convention.
The Court responded

It is not for the Court in this case to attempt to
assess whether or not the state of the law in any other country
fails to protect the right to life. As it recognised in the case
of Keenan,[[48]]
the measures which may reasonably be taken to protect a prisoner
from self-harm will be subject to the restraints imposed by other
provisions of the Convention, such as Articles 5 and 8 of the
Convention, as well as more general principles of personal autonomy
(see § 91 [of the judgment in Keenan]). Similarly,
the extent to which a State permits, or seeks to regulate, the
possibility for the infliction of harm on individuals at liberty,
by their own or another's hand, may raised conflicting considerations
of personal freedom and the public interest that can only be resolved
on examination of the concrete circumstances of the case ...[49]

51. In view of this, we cannot state categorically
that a Bill to allow assisted dying would be compatible with Article
2. Nevertheless, we find the following propositions persuasive

The State usually has a duty not to deprive people
of life intentionally.

It also has a positive obligation to take appropriate
steps to protect the lives of people whom it knows to be at risk
of being intentionally deprived of life.

The State's positive obligations are not absolute.
They depend on what is reasonable and practicable in the circumstances
of each case. When considering this matter, the State has a margin
of appreciation (or, in domestic courts, a discretionary area
of judgment) in which the courts must, within limits, respect
a properly made assessment by the primary decision-maker.

When deciding what positive steps are appropriate
to protect life within its area of judgment, it is legitimate
for the State to take account of other rights and the circumstances
of individual cases.

Patients have other rights, beside the right
to life. As established in Pretty v. United Kingdom,
competent patients have a right to self-determination and personal
autonomy under Article 8.1. The State may, if it sees fit, interfere
with this right in order to protect the rights of vulnerable patients,
and does not thereby violate either Article 8 or Article 14. However,
the State may equally come to the conclusion that there are good
reasons for not interfering with decisions of particular patients
and with the acts of professionals pursuant to those decisions.
In other words, within its area of discretion it would be legitimate
for a State to decide that it would be inappropriate to take State
action through the criminal law to interfere with personal autonomy
so as to give positive protection to life, if the circumstances
are right.

Those circumstances include, crucially, the adequacy
of safeguards to ensure that vulnerable patients are not subjected
to assisted dying against their wills.

52. We consider that changing the law to permit assisted
dying would not in itself constitute a deprivation of life by
the State. ECHR Article 2 would only be engaged when a person
sought to assist someone else to die, and the State's responsibility
would be to comply with its positive obligations in relation to
such cases. The central question is, what are the State's positive
obligations in such a case? The decisions of the House of Lords
and the European Court of Human Rights in the Pretty case
show that the State has a discretion to prohibit assisted suicide
as a way of protecting the sanctity of life which ECHR Article
2 protects. However, those decisions do not establish that the
State has a positive obligation to protect people against being
helped to die at their own request, or (to put it another way)
that the State would necessarily be acting unlawfully under international
human rights law in permitting people to help other people to
end their lives. Indeed, as noted above, the European Court of
Human Rights expressly left that question open.

53. We are fortified in this view by the terms in
which the International Covenant on Civil and Political Rights
(ICCPR) recognizes the right to life. Article 6.1 of the ICCPR
states

Every human being has the right to life. This right
shall be protected by law. No one shall be arbitrarily deprived
of his life.

ICCPR Article 6.1 prohibits only the arbitrary deprivation
of life, not all intentional deprivation of life, and it leaves
States to define the content of the right to life. Our view of
the obligations arising under ECHR Article 2 is in harmony with
the terms of ICCPR Article 6.1: helping someone to die is compatible
with Article ICCPR 6.1 as long as it is not arbitrary. It would
not be arbitrary to allow a person to assist another to die at
that other person's request and subject to appropriate safeguards
against abuse.

54. We have therefore concluded that ECHR Article
2 does not prohibit legislation such as the Patient (Assisted
Dying) Bill. The compatibility of such legislation would depend
on the extent to which allowing such a measure to be operated
would be consistent with the State's positive obligations under
Article 2 to take active steps to protect life. We consider that
the State has a discretion to allow such a measure in order to
respect some patients' rights under ECHR Article 8, if satisfied
that the rights of other, vulnerable, patients would be adequately
protected.

55. The circumstances in which a person could
be assisted to die. We now examine the safeguards in the Bill
to see whether they would be sufficient to avoid arbitrariness
and to provide adequate safeguards for vulnerable patients.

56. The Bill would allow a physician to assist a
qualifying patient to die in specified circumstances. A qualifying
patient would be someone who

has reached the age of majority (currently 18);

has been resident in the UK for at least twelve
months before making the declaration; and

has satisfied the conditions set out below.

57. Before A makes the declaration, it would have
been necessary for the attending physician

to have been voluntarily asked by A to help him
or her die without the request being the result of external pressure;

to have examined A and found him or her to be
competent;

to have found A to be suffering unbearably as
a result of having an irremediable condition; and

to have informed A of the diagnosis, the prognosis,
the process and probably consequences of being assisted to die,
and the available alternatives.

In addition, a consulting physician would have to
have examined A after examining the medical notes, to have confirmed
the views of the attending physician, and to have been satisfied
that the required steps have been taken.[50]

58. A would have to have made a declaration, which
would have to have been witnessed by two independent individuals.
One witness would have to have been a solicitor holding a current
practising certificate, who would have to have been satisfied
that A understood the full force and effect of the declaration.[51]

59. Before taking any steps to help A to die, the
attending physician would have to have satisfied himself that
A had made an informed decision. The physician would have to have
informed A of his or her right to revoke the declaration at any
time, to have verified that the declaration is in force and has
not been revoked, and to have asked the patient immediately before
assisting A to die whether he or she wished to revoke the declaration.[52]

60. There would be other safeguards against abuse,
including provisions about documentation and record keeping, the
establishment of a commission to monitor the operation of the
legislation and the documentation, and a power for the Secretary
of State to make regulations determining classes of people who
would be unable to make a declaration.

61. In our view, the safeguards set out in the
Patient (Assisted Dying) Bill would be adequate to protect the
interests and rights of vulnerable patients. They would ensure
that nobody could lawfully be subjected to assisted dying without
his or her fully informed consent. We consider that this would
respect the right to personal autonomy and self-determination
of mentally competent patients under ECHR Article 8.1, and would
not be incompatible with the positive obligations of the State
to protect life under ECHR Article 2.